GoPro can fall from planes with no parachute, can’t get copyright law

GoPro sends a DMCA notice. Because its trademarks were used. In a review.

GoPro is a company that sells cameras geared toward extreme circumstances, like mountain biking, whitewater kayaking (both featured in the video on their website), and even falling out of airplanes or swimming with dolphins.

Another thing GoPro apparently wants to get extreme about is deleting reviews they don't like.

A GoPro "brand manager" has sent a DMCA takedown notice to DigitalRev, a photography shopping and discussion site. The review, titled "GOPRO Hero 3 vs SONY HDR-AS15—Which Action Camera should you get?" isn't up anymore. Instead, it has been replaced with a letter from GoPro.

Remarkably, GoPro's brand manager actually had the review taken down because of what he calls a "trademark" violation—something that isn't even covered by the DMCA, the Digital Millennium Copyright Act. Putting aside the fact that it is perfectly legal to use any trademarks one wants when writing a review, the process of writing reviews of any sort would be literally impossible without naming the trademarked products one is writing about.

DigitalRev has a blog post up about the takedown, suggesting that most DMCA takedowns are "abusive" in nature. "We hope GoPro is not suggesting, with this DMCA notice, that camera reviews should be done only when they are authorized by the manufacturers," writes DigitalRev. "GoPro (or should we call you Go*ro instead?), we'd be interested to hear what you have to say" about the infringement notice.

The infringement notice reads: "I have a good faith belief that use of the trademark(s) described above in connection with the domain and URLs described above is not authorized by the trademark owner, and such use is not otherwise permissible under applicable law."

Overall, it's a sad state of affairs. Not only does GoPro basically blow off the real limits of the law—down to ignoring its name—but hosting provider Softlayer caved immediately and insisted the page be taken down. Unfortunately, there's little that can be done under current law to punish companies for wild DMCA takedowns. The most-publicized attempt to do so, EFF's "Dancing Baby" case, has resulted in years of litigation. As of now, there are still no damages.

Update: A GoPro representative has posted a response on reddit calling the episode an "unfortunate miscommunication." The DMCA notice was about images used in sales:

Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images.

There would seem to be some odd holes in that story. For instance, what mistake led to a review being taken down if a review wasn't the intended target? Why did the takedown letter list two trademark names (GoPro and Hero) if the real issue was about photos used in sales? But even if GoPro's response is accurate, it still looks like a misuse of the DMCA takedown process. There's nothing illegal about a DigitalRev poster, or DigitalRev itself, using whatever images it wants of GoPro cameras—not merely GoPro's "authorized" images.